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Publication Date

2021

Abstract

Successive presidents have interpreted the Federal
Vacancies Reform Act of 1998 to authorize the appointment of
principal officers on a temporary basis. Despite serving in a
mere “acting” capacity and without the Senate’s approval, these
acting principal officers nevertheless wield the full powers of
the office. The best argument in favor of this constitutionally
dubious practice is that an acting principal officer is not really
a “principal officer” under the U.S. Constitution because she
only serves for a limited period. Although not facially specious,
this claim elides the most important legal fact: an acting
principal officer may exercise the full powers of the office, just
like a Senate-confirmed cabinet officer. This approach broadly
vindicates Article II’s Take Care Clause, which requires that
the President have the assistance needed to ensure that “the
laws be faithfully executed.” Unfortunately, this approach
effectively reads the Appointments Clause out of the
Constitution. For a person to hold a principal office, the

Appointments Clause expressly requires that the President first
seek and obtain the “advice and consent” of the Senate. Without
the Senate’s approval, a person cannot constitutionally hold a
principal office (i.e., head a cabinet-level department or
agency).
This Article proposes a better approach that would vindicate
both the Take Care and Appointments Clauses: federal courts
should limit the scope of authority acting principal officers may
exercise to the performance of essential and necessary tasks—in
other words, an acting principal officer must be a caretaker in
both form and substance. Federal courts should not allow
acting principal officers to undertake new discretionary
programmatic initiatives. Moreover, if an acting principal
officer attempts to wield the full powers of the office, federal
courts should nullify, as ultra vires, discretionary
policymaking initiatives that are not clearly essential and
necessary to the performance of core executive functions. This
approach would render acting principal officers more plausibly
“inferior” under the Appointments Clause, would make them
subordinate to a supervisor other than the President (Article III
courts), and would create a powerful incentive for the President
to nominate and obtain the Senate’s approval of a principal
officer who could constitutionally exercise the full powers of the
office.

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